A Magistrate has no obligation to record a witness’s statement under S.164 CrPC unless prompted by the investigating officer.

1. The question raised by way of this petition is as to whether a witness, of his own has the right to approach a Magistrate to record his statement under S.164 CrPC; and whether such Magistrate is under a legal obligation to record the statement of such witness under S.164 CrPC, when investigation in a criminal offence is going on?

2. The petition seeks issuance of a writ in the nature of Mandamus, directing the investigating agency to record statement of the petitioner under S.164 CrPC. in open Court.

3. It has been pleaded in the petition that the petitioner lodged false FIR on the basis of fabricated facts under pressure from her husband, bearing Case Crime No. 358 of 2014, under S.376 and S.506 IPC, police station Laharpur, district Sitapur (First Information Report dated 9th September, 2014, Annexure - 1). It has further been pleaded that the petitioner is an illiterate person with no knowledge of law. The petitioner did not know the accused.

4. In paras - 9 to 11 of the petition, it has been pleaded that under threat of her husband and the investigating officer of the case, the petitioner gave her statement under S.164 CrPC against Nasru, son of Buddha.

5. The petitioner moved application before the Additional Chief Judicial Magistrate - I, Sitapur for recording her statement a second time under S.164 CrPC, which has not been allowed. Appropriate directions be issued so that second statement of the prosecutrix is recorded under S.164 CrPC.

6. None appears for the petitioner.

7. We have taken note of the conceded position of the petitioner that she is author of FIR, Annexure - 1, making allegation of commission of serious offence, like rape. Subsequently, during the course of investigation, on the initiation of the investigating officer, statement of the petitioner was recorded under S.164 CrPC. The petitioner supported the prosecution case, as contained in the FIR version.

8. At a later juncture, however, the petitioner has developed the case that the earlier statement given to the police under S.154 CrPC for registration of FIR, and given as a witness under S.164 CrPC during the course of investigation, were false, under pressure and coercion of husband of the petitioner. It is in this backdrop of facts that the petitioner wants to give another statement under S.164 CrPC in regard to the same incident, and not in addition, however, giving a different version and hue to the incident.

9. It appears that the statement has not been recorded by the Magistrate because the investigating officer did not move an application for recording of such statement.

10. By virtue of this petition, the petitioner seeks a writ in the nature of Mandamus, directing the Magistrate and the investigating agency to record statement of the petitioner under S.164 CrPC.

11. Law in regard to recording of statement under S.164 CrPC has been clarified by the Hon'ble Supreme Court of India in the case of Jogendra Nahak and Others v. State of Orissa and Others , 2000 (1) SCC 272 (paragraphs 19, 22, 23 and 24). The following has been held : -
"19. In the scheme of the above provisions there is no set or stage at which a magistrate can take note of a stranger individual approaching him directly with a prayer that his statement may be recorded in connection with some occurrence involving a criminal offence. If a Magistrate is obliged to record the statements of all such persons who approach him the situation would become anomalous and every Magistrate's court will be further crowded with a number of such intending witness brought up at the behest of accused persons.
22. If a Magistrate has power to record statement of any person under S.164 of the Code, even without the investigating officer moving fo